Court File and Parties

COURT FILE NO.: FS-18-000543 DATE: 20180815 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Marie Fiorellino-Di Poce, Applicant AND: John Di Poce, Respondent

BEFORE: Kiteley J.

COUNSEL: Harold Niman/Chloe van Wirdum, for the Applicant Aaron Franks/Penelope Ng, for the Respondent

HEARD: in writing

Endorsement as to Costs Arising Out of Motion Heard March 22, 2018

[1] On March 22, 2018 I heard a motion for temporary spousal support and other relief and on April 6, 2018, I released reasons for decision [1]. In paragraph 56 I established a timetable for written submissions as to costs. I received the written submissions of the Applicant dated May 28 and of the Respondent dated June 11. Counsel delivered reply submissions from the Applicant dated June 25, 2018 that recently came to my attention.

[2] The Applicant asks for costs on a full recovery basis ($54,340.25) or substantial indemnity basis ($40,759.83) together with $1,000 inclusive of HST for preparation of the submissions.

[3] The Respondent seeks full recovery costs in the amount of $108,070.32 inclusive of disbursements and HST.

[4] The Applicant was successful in that she obtained an order for temporary spousal support considerably in excess of the amount the Respondent had been paying voluntarily. Pursuant to rule 24(1) she is presumed entitled to costs.

[5] The issue is whether that presumption is rebutted.

[6] As indicated in paragraphs 8 to 16 of the earlier endorsement, the Applicant brought her motion on short notice, indeed, with no effective notice. As a result of starting proceedings and refusing a short adjournment and creating a “maelstrom”, counsel for the Respondent was required to spend considerable time and effort under severe time pressure to serve and file responding material. The Respondent takes the position that the conduct of the Applicant was unreasonable and, pursuant to rule 24(4), that the Applicant should be deprived of costs and that the Respondent should recover his costs.

[7] I agree that it was unreasonable within the context of rule 24(4) for the Applicant to launch an important motion without any attempt to ensure proper notice let alone notice appropriate to the significance and complexity of the motion. As indicated at paragraph 3 of the earlier endorsement, from the Applicant’s perspective, the parties had been negotiating a separation agreement but the Respondent had failed or refused to provide financial disclosure and in frustration, she issued the Application on February 14, 2018. As indicated at paragraph 8 of the earlier endorsement, she described her financial situation as precarious and asserted that the Respondent had left her with no choice but to commence proceedings. As indicated in paragraph 22 of the earlier endorsement, I found that she had modest assets. None of those factors justify the precipitous nature of this motion.

[8] The haste with which this motion was brought has to be put into the context of the Applicant’s fragile medical condition, having survived major surgery in December 2017. I expect that her health condition likely impacted her ability to consider alternatives available, including giving appropriate notice. It does not justify or excuse the unreasonable conduct nor does it warrant denying her costs. It will lead to a reduction in the amount that she recovers.

[9] The unreasonable conduct of the Applicant does not justify an order that she pay costs of the Respondent. Part of her frustration was his lack of financial disclosure. As indicated in paragraph 39 of the earlier endorsement, Mr. Franks conceded that in 2017 when the parties were negotiating, the Respondent had provided no financial disclosure. While her personal circumstances caused her to precipitously launch the urgent motion, the motion was inevitable at some point because of his failure to provide disclosure. The costs incurred by the Respondent are double the costs incurred by the Applicant. However, I expect that much of that had to do with him finally providing at least sufficient financial disclosure to respond to the motion. He would have had to incur those costs related to financial disclosure in any event and those costs ought not to be considered as a factor in granting him costs of the motion.

[10] While she obtained an order, it was, on the face of it, for far less than the $200,000 per month she had requested. Given the circumstances in which the motion was prepared and the need for additional disclosure by the Respondent, at paragraph 36 I indicated that the order was at this point tax neutral and that I would address the taxation issue by the end of March 2019. At this point, I cannot determine the relationship between the order I made and the amount requested in the notice of motion.

[11] The parties exchanged offers as follows:

• Applicant: served end of the day on Friday, February 16, 2018 of Family Day long weekend (the date the motion was served returnable Thursday February 22, 2018)
• Respondent: served Wednesday, February 21 and contained terms designed to adjourn the motion
• Applicant: March 13, 2018
• Respondent: March 13, 2018
• Applicant: March 14, 2018.

[12] I have not set out the content of the offers because the parties, understandably, expected that there would be an income tax component in the amount ordered to be paid. Suffice it to say that the Applicant’s offers did reflect amounts considerably less than the amount claimed in the notice of motion. The Respondent’s second offer dealt with the request for periodic support combined with his proposal to purchase a condominium for occupation by the Applicant. The offers reflect reasonable attempts to reach consensus. However, the unreasonableness of the timing of the motion no doubt had a negative impact on the content of offers and the ability of the parties to resolve what had become an unnecessarily high conflict motion. It would be a challenge for a Respondent under such circumstances to devote the necessary attention to both preparing material to respond to a very important motion and to attempt to settle the outstanding issue. In this case, the timing and content of the offers do not bear on the amount of costs ordered.

[13] The Respondent has not rebutted the presumption that the Applicant is entitled to costs. The unreasonable conduct of the Applicant does not disentitle her to costs but does lead to a reduction. In my view, considering the factors listed in rule 24(11) and the unique circumstances of this case, it is reasonable that the Applicant recover costs of approximately 50% of the substantial indemnity costs and the costs incurred in the preparation of the submissions.

Order

ORDER TO GO AS FOLLOWS:

[14] By August 29, 2018, the Respondent shall pay to the Applicant costs of the motion up to and including April 6, 2018 and including costs incurred in preparing the submissions as to costs, in the total amount of $21,000 inclusive of fees, disbursements and HST.

Kiteley J. Date: August 2018

Footnote: [1] 2018 ONSC 2194